CERTIFIED FOR PUBLICATION
COURT OF APPEAL - FOURTH APPELLATE DISTRICT
STATE OF CALIFORNIA
SAN DIEGO GAS & ELECTRIC
(San Diego County
Super. Ct. No. GIC833517)
SUPERIOR COURT OF SAN DIEGO
MODIFICATION ORDER AND
ORDER DENYING PETITION FOR
[Change in Judgment]
DEBRA HARRIS et al.,
Real Parties in Interest.
The published opinion filed on January 25, 2007 is modified as follows:
Page 2, paragraph 1, the first sentence is modified to read: In this case we issued
an order to show cause to address whether the relation-back doctrine applies to save the
claims of an omitted heir whose wrongful death cause of action would otherwise have
been barred by the statute of limitations.
Page 3, paragraph 3, the second sentence is modified to read: The parties agree
that Nicole's claims, as currently pled, are untimely and barred by the statute of
limitations unless the relation-back doctrine applies.
Page 8, last paragraph, and page 9, first paragraph, are modified to read: Because all
wrongful death claimants must show the nature of his or her loss as a result of the decedent's
death, the addition of an omitted heir to a wrongful death action after expiration of the
limitations period as to the omitted heir necessarily inserts a new cause of action that seeks to
enforce an independent right; as such, the relation-back doctrine will not apply. We reject
the plaintiffs' suggestion that a perceived lack of prejudice to SDG&E justifies application
of the relation-back doctrine because the failure to comply with a statute of limitations
cannot be excused on the ground of lack of prejudice. (State Farm Fire & Casualty Co. v.
Superior Court (1989) 210 Cal.App.3d 604, 612.) Here, the plaintiffs sought to add Nicole
as an additional heir after the two-year limitations period expired on her wrongful death
claim. Under these circumstances, the relation-back doctrine does not apply and the trial
court erred in allowing the amendment on this basis.
Although the trial court's reason for allowing the amendment was erroneous,
we cannot say the trial court abused its discretion in allowing the amendment
because plaintiffs' assert they can amend the complaint to allege tolling of the
statute of limitations and we take judicial notice of their proposed third amended
complaint. Accordingly, we remand this matter to the trial court with instructions
to allow plaintiffs leave to file their proposed third amended complaint. In doing so,
we express no opinion on the merits of plaintiffs' tolling argument.
Page 10, the Disposition is modified to read: The petition is denied. Upon
remand, the trial court is directed to allow plaintiffs leave to file their proposed third
amended complaint. The stay orders issued on September 1, 2006 and October 3, 2006
are vacated. Each party to bear its own costs on appeal.
The petition for rehearing is denied.
The disposition is changed to reflect the above changes.
BENKE, Acting P. J.
Copies to: All parties